As Gideon Kanner points out, you don’t need to be a property rights advocate to see the California Environmental Quality Act as a lawsuit-intensive mess (quoting Prof. Robert Freilich):
Many attorneys, planners, architects, engineers, scientists, developers, small businesses, business associations and governments in the state, and many environmentalists are agreed that CEQA needs major reform. Delays in the system are causing projects to suffer delays of 2 to 9 years to get EIRs approved, especially for (but not limited to) the failure to compare the project with all “feasible” alternatives, establish vague baseline analysis for existing mitigation, and the tricky determination as to which parts of regional, general and specific plan EIR findings can be incorporated, to eliminate duplication of effort and cost. The law is so confused on these points that it is a miracle that any EIR can survive its first round in the courts without a remand to do it over again. Complicating this result is the establishment of a specialized group of attorneys that initiate litigation at the drop of a hat, primarily because the statute authorizes attorney’s fees for any remand or reversal. Many community associations and no growth environmentalists use the EIR litigation process to delay and in many cases kill projects for little or no environmental substance.
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It is to be assumed that the good citizens of California want the Gordian knot they now have. After all they elected the representatives/senators who passed this law, and by and large have re-elected them since the law was passeed (some of the several times). They must like it. And even if they don’t, people generally get the type government they deserve.
Besides which, unlike East Germany which otherwise California has considerable in common with, there is no wall around California and those who don’t like the governement they’re getting can escape. Other states will happily accept out-migrating businesses and development (but please leave your California attitudes and politics at home). California has experienced considerable out-migration of productive individuals and business over the last several years, but obviously not quite enough. But if they just persist, if they hold fast to their current course, they can drive out most of those nasty, conservative work-ethic types, though, and have their Mexifornia-Hollywood paradise.
As an exiled California Native, it makes me sad the way that the social outcasts and misfits from everywhere else have ruined a once great and livable state. I left fifteen years ago when I came to the realization that the liberal immigrants want the state to be one great big natural park with people jammed into “approved” city areas.
California deserves exactly what it gets, electing these corrupt officials and their hyper-regulation.
I especially like the social parasite litigators who make easy fortunes feeding off the intentionally vague Catch 22 totalitarianism, disguised as public law.
If we could change but one thing, that would be the citizen AG statute that allows the professional CEQA attys to gain surreptitious ‘public’ standing; followed by the inability of prevailing defendants to recoup any kind of compensation for defense of a spurious suit.
How about this:
1.) Must have explicit permission from the AG to file an action on behalf of the people;
2.) If no permission is given, then suit can be filed w/ that same standing, but there is a provision for ‘loser pays’ not just court costs, but atty fees as well; regardless of any subsequent appeal.
[…] up on last week’s post, Gideon Kanner calls our attention to this summer’s case of Clover Valley Foundation v. City […]
Response to audihalt:
California’s private attorney general statute is the weakened remnant left behind after avaricious corporate lobbyists and politial cronies took away the AG’s original authority to enforce CEQA. The bone they threw to we Californians was the right of self-enforcement, using attorneys if we choose. There is nothing surreptitious about private attorneys representing members of the public. For to suggest citizens should also have to risk becoming liable for hundreds of thousands of dollars in costs and fees if outlawyered by wealthy developers is absurd. What’s next? Demanding that the police repay criminal defense attorneys when crooks evade jail? So, come out and say what you really think: that CEQA should be voided and polluters have a free for all. How about you moving to China instead where you will feel more at home?
Lily, you believe that CEQA lawsuits are only brought against rich developers, so therefore they are good?
Bill, I didn’t say or imply that CEQA lawsuits only challenge rich developers. But asking ordinary citizens (typically having no potential for personal profit) to risk immense costs and fees when suing wealthy, well-defended developers is inequitable and wrong. Cash-strapped developers are less likely to mount a capable but costly defense. All developers bear the responsibility to adequately present their projects’ environmental impacts. If developers cut corners, or fail to professionally and accurately follow CEQA, they become vulnerable to citizen suits. Agencies these days are underfunded and can’t be trusted to competently abide by CEQA. Developers should backstop such environmental reports by hiring their own experts. Obviously that does not always happen. They should learn, you snooze, you lose. If CEQA scares fly-by-night developers into fleeing to Texas where regulations are lax, that is fine by me.